A federal judge today decided not to delay enforcement of a ruling in an important case regarding which candidates get to appear first on West Virginia’s ballots.
ACLU-WV filed an amicus — or “friend of the court”— brief on behalf of itself and the Mountain and Libertarian parties in the case, urging the court to enforce the judgment before the fall election in the interest of ensuring fairness and transparency in the voting process.
For many years, West Virginia has used an unconstitutional method for determining ballot order. Under this method, officials give the top placement on the ballot to the candidate whose party won the last presidential election.
Last month, a federal judge in Huntington said that process is unconstitutional. But he also indicated at the time that he would consider ordering a “stay” on enforcement of the ruling until after the fall election.
In that event, the election would proceed with the ballot order statute in effect, resulting in a process that unconstitutionally prioritizes one political party over others. The plaintiffs in this case are the West Virginia Democratic Party, the West Virginia House Legislative Committee, the chairperson of the Kanawha County Democratic Executive Party and individual candidates. The defendants in the case are Secretary of State Mac Warner and the Kanawha County Clerk.
In our brief, we argued the judge was correct in ruling the process is unconstitutional, and that there was no reason to continue enforcing an unconstitutional law.
Today, the judge agreed.
This is an important victory for our democracy. Ballot order matters. Studies have shown that the candidate who appears first can receive 2.5 percent more of the vote than those who come after. In many races that can be the deciding factor. Handing this coveted spot to the party that controls the White House – no matter what party that might be -- only favors incumbency.
Shortly after the decision was issued, both defendants filed a notice with the court stating that they are appealing the judge’s decision to the Fourth Circuit. If the appeals are unsuccessful, then going forward ballot order will be determined by any method that is constitutionally sound. Constitutionally compliant alternatives could be something as simple as a coin toss or a drawing to determine ballot order. Randomized methods ensure that the process of deciding which candidates get top ballot billing is fair.
We will continue to monitor this case as the appeals process plays out.